ACLU: Winsted Board of Selectmen public comment policy is unconstitutional(document)

Winsted >> The American Civil Liberties Union of Connecticut contacted Mayor Maryann Welcome on Thursday to inform her that they believe the town has acted unconstitutionally at Board of Selectmen meetings by limiting and restricting public comment.

Recent amendments to the public comment policy of Board of Selectmen meeting excluded criticizing comments directed to the board. Prior to the amendment, the public could address any selectman on any matter. But as of this June 3, public comment began to be limited. The ACLU found this amendment to be in violation of the First Amendment, according to the letter, which was also sent to Town Manager Dale Martin, Town Attorney Kevin Nelligan and the other members of the Board of Selectmen.

Public comments have been an issue at Board of Selectmen meetings for several months. Before the policy was changed, one selectman, Glenn Albanesius, called the comments a "sideshow."

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After being made aware of the policy, the ACLU began its investigation by reviewing the towns minutes and videos of meetings. During its investigation, Winsted resident Jay Budahazy contacted the organization to complain about his treatment at the board's July 1 meeting.

Budahazy told the ACLU that Selectman Althea Candy Perez, who led the meeting in the absence of Welcome, censored his comments toward selectman James DiVita.

At that meeting, Budahazy criticized DiVita's failure to address recreation issues earlier in the meeting, and according to the ACLU's letter Perez asked him to "rephrase" his comments, referring to the comments as a "personal attack." Budahazy said to DiVita, "to sit there as a chairman (of the Recreation Board) and not say anything is crazy," referencing DiVita's failure to advertise local concerts. Perez told Budahazy he was allowed to comment on the concerts, but not about DiVita's failure to advertise them.

The ACLU said "...DiVita and Perez essentially refused to allow Mr. Budahazy to address Selectman DiVita's failures as Chairman of the Recreation Board and as a Selectman."

According to David McGuire, staff attorney for the ACLU, a large amount of the organization's cases are generated by public complaint.

"We're hoping that [the town] will take this opportunity to change the language of the policy to come in line with what the law is," McGuire said. "We've given the town until the seventh of August to respond."

Currently the policy reads. "Speakers may offer objective comments that concern them. No one will be permitted to express personal complaints or defamatory comments about Board of Selectmen members nor against anyone connected with the Town or any individual, firm or corporation nor against other members of the audience."

DiVita says he thinks the policy was created to ensure civility in the meeting.

"I think the present policy in regards to public comment is fine," DiVita said. "It gives everyone the opportunity to speak. But the ACLU is entitled to its opinion, that's why we live in America."

In the two-page letter addressed to Welcome, the ACLU lists a total of six cases they believe set precedent related to this case. It also addresses what the board can and cannot restrict in public meetings. The state Freedom of Information Act does not require public comment at public meetings.

"The Town possesses the power to impose reasonable restrictions on the permitted subjects for public discussions: for instance, by requiring that citizens' comments relate to the meeting's agenda," the letter states. "But the Town cannot restrict comments within a permitted subject area based on the speaker's viewpoint."

Welcome said she thinks the way the regulation was written was within the rights of the public.

"I didn't see any problem with it," she said "I thought [the regulation] was pretty open. It's just common sense. To me what they want is more limiting than the way it is right now."

Though she wasn't fully aware of the situation, Welcome said she wonders what else it will limit her or the town from doing.

"It's similar to telling people to turn their phones off when they enter the room," she said. "Can I not do that anymore?"

The ACLU stated in its letter that it will pursue litigation if the policy is not changed.

"We sincerely hope that ligation can be avoided. It's not in anyone's interest," McGuire said. "That's why we submitted the letter on behalf of Mr. Budahazy."

Nelligan, Martin, and Perez were contacted by The Register Citizen on Thursday and were not available for comment.

The ACLU has made an audio recording of the exchange between Budahazy, and the Board of Selectmen that occurred on July 1, available on its website. ACLUCT.org/Winsted.